Judge: Smith a ‘manipulator’
by Gregory R. Norfleet · News · July 17, 2014

Federal officials filed a superseding grand jury indictment against an aunt accused of leaving her abducted infant nephew in sub-freezing temperatures; if convicted, she would receive a minimum 25-year sentence.

And in a recent report, a judge called Kristen Smith, 31, of Aurora, Colo., “a savvy manipulator” who could not be coerced by investigators.

The new charge, filed June 25, clarified that Smith could be also convicted under the name of Kristen Pearson, an alias discovered during the investigation.

Further, a recent report filed by Magistrate Judge Stephen L. Crocker — not the judge who will oversee the trial — recommends that Smith’s statements to police after 1:30 a.m. Feb. 7 should be ruled inadmissible in court.

Those statements include a point where law enforcement announced they found 6-day-old Kayden Powell alive, whereupon Smith allegedly admitted to kidnapping the boy, a claim which she then allegedly verified by drawing a map showing where she placed the tote box in which she hid him.

The case is set to go to trial July 28.

Prosecutors objected to the recommendation by Crocker, arguing that while Smith at 1:30 a.m. Feb. 7 asked for an attorney, it was only for guidance in signing a form giving the FBI permission to search her Yahoo e-mail account.

Crocker wrote a 24-page report reviewing details of the case, among which state that during the 29 hours investigators believe Kayden spent in the tote box, temperatures dropped to as low as -11 degrees Fahrenheit and -20 degrees with the wind chill.

The magistrate judge and U.S. Attorney John Vaudreuil disagree on how to interpret Smith’s body language, the context of FBI agent questions and incoherent or mumbled comments Smith made in videorecorded interviews.

Crocker wrote that, in his view, FBI statements to the court were honest about whether Smith was properly Mirandized and that Smith’s statements to the contrary were untruthful or “self-serving.”

“Finally, at about 1:30 p.m., Smith pretended to fall asleep and would not respond to the agents questions,” the judge wrote, noting Smith had undergone about 13 1/2 hours of questioning.

FBI agents were then about to send Smith back to her jail cell to sleep, when one agent, James McMillan, asked her to sign a consent form to search her e-mail account. Smith shook her head but did not speak. Trying to clarify what Smith meant, this exchange followed:

McMillan: I’m sorry. I can’t understand what you’re saying.

Smith: Everything else I want an attorney to advise me.

McMillan: Okay, you want an attorney to advise you on what?

Smith: (inaudible) … sign anything.

McMillan: Okay, like the consent?

Smith: Yeah.

McMillan: Okay.

Crocker said it appeared Smith wanted an attorney to advise her on signing the consent form and anything else, and cited court precedent that it is the prosecution’s burden to prove Smith waived her right to an attorney.

“First, it means that ties go to the (defendant) … (and) I have found as a fact that Smith said ‘Everything else I want an attorney to advise me.’ That is an unequivocal, unconditional request for the assistance of counsel,” the judge wrote.

He further writes that since agents approached Smith the next morning — rather than Smith initiating contact — that even after being read her Miranda rights, Smith’s statements in that interview should not be included as evidence.

The prosecution disagreed, stating Smith’s request “was at most a limited invocation that applied only to signing documents, like the consent to search her e-mail account.”

Vaudreuil points to the inaudible statements made by Smith, saying the judge lacked enough context to make definitive conclusions.

Vaudreuil argued that if Crocker found the FBI agents to be honest and forthright in everything else they reported about Smith and the interviews, then it stands to reason the FBI correctly judged that Smith only wanted a lawyer for signing documents, not further questioning.

“In order to invoke the right to an attorney, the defendant must articulate her desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney,” Vaudreuil wrote. “Unheard communication cannot be the basis for invocation of rights any more than a thought or wish for counsel.”

The prosecution adds that Smith did not mention her previous request for an attorney when FBI agents approached her the next morning for another round of questioning and started explaining her Miranda rights.

Crocker goes on to call Smith “a savvy manipulator who constantly assessed and reassessed her environment for threats, then countered them with manufactured charm, feigned victimization or exaggerated indicators of tiredness,” which refutes her claim of being coerced into taking a lie detector test, which she failed.

“Smith was old enough, smart enough, articulate enough and sufficiently experienced with the criminal justice system to hold her own in any ordinary Q&A session with a pair of FBI agents,” the judge wrote. “Smith’s repeated, vigorous — and false — denials of any knowledge of or involvement in (Kayden Powell’s) disappearance, coupled with her monstrous indifference to a four-day old baby’s safety after essentially abandoning him to die alone in the bitter cold demonstrated that throughout every minute of this entire process, Smith would not be — could not be — coerced or intimidated by the agents.”

He went on to say that the FBI agents “leaned on her hard,” but with justification.

“Undoubtedly they felt morally, as well as legally obliged to find the baby,” Crocker wrote. “If (Kayden) had been found dead behind that gas station, then the agents likely would have spent sleepless nights wondering why they had not pressed Smith harder. But nothing they did crossed the line, and Smith was absolutely impervious to their efforts.”

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